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                           Before the 
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )            File  No.  EB-03-CG-
                         054
WLTH Radio, Inc.                )            
WLTH(AM)                        )            NAL/Acct. No. 
200432320001
Gary, Indiana                   )            
                                )            FRN 0004 9887 62
                                
                        FORFEITURE ORDER

Adopted:     December 2, 2004                Released:    
December 6, 2004    

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of sixteen thousand dollars 
($16,000) to WLTH Radio, Inc. (``WLTH''), licensee of AM radio 
station WLTH, Gary, Indiana, and owner of the station's antenna 
structures, for willful and repeated violation of Sections 
17.4(a), 17.48 and 17.51(a) of the Commission's Rules 
(``Rules'').1  The noted violations involve WLTH's failure to 
register the antenna structure for the station, failure to notify 
the Federal Aviation Administration (``FAA'') of a known antenna 
structure light outage, and its failure to exhibit the required 
red obstruction lighting.
     2.   On December 23, 2003, the District Director of the 
Commission's Chicago, Illinois, Field Office (``Chicago Office'') 
issued a Notice of Apparent Liability for Forfeiture (``NAL'') 2 
to WLTH in the amount of sixteen thousand dollars ($16,000).  
WLTH filed its initial response to the NAL on January 23, 2004, 
and supplemented it on February 27 and September 8, 2004.
II.          BACKGROUND.
     3.   WLTH has two antenna structures - one located in Gary, 
Indiana, and used for WLTH's daytime transmissions (``the day 
antenna structure'') and the other located in a rural area near 
Gary, Indiana, and used for WLTH's nighttime transmissions (``the 
night antenna structure'').  The day antenna structure's height 
is more than 200 feet above ground level (``AGL'') and that 
structure is subject to the registration, lighting and marking 
requirements specified in Part 17 of the Rules.3  The night 
antenna structure, whose height is less than 200 feet AGL, is not 
subject those requirements.
     4.   On February 14, 2003, the Commission received a 
complaint alleging that WLTH's antenna structure lighting was not 
operational.  The agent checked the Commission's antenna 
structure registration (``ASR'') data base on February 26, 2003, 
and determined that WLTH's day antenna structure was not 
registered.4  On March 5 and 6, 2003, respectively an agent from 
the Chicago Office informed a WLTH employee and the station's 
engineer by telephone that the Commission had received the 
complaint.  On March 12, 2003, the station engineer told the 
agent by telephone that there were underground cabling problems 
that resulted in a lighting outage at the day antenna structure 
and that he did not know the length of the outage because the 
power loss was sporadic.  
     5.   On March 12, 2003, the station engineer also told the 
agent that he had not notified the Federal Aviation 
Administration (``FAA'') of the lighting outage.5  On March 19, 
2003, the agent contacted the FAA and determined that the FAA's 
records indicated that WLTH notified the FAA of the lighting 
outage on March 12, 2003.  In a letter dated March 26, 2003, WLTH 
stated that it had corrected the lighting outage.
     6.   Based on its investigation, on December 23, 2003, the 
Chicago Office issued the subject NAL for WLTH's apparent willful 
and repeated violations of Sections 17.4(a), 17.48(a), and 
17.51(a) of the Rules.  In its initial response to the NAL, WLTH 
does not contest the fact that the tower was unregistered or 
unlighted for a period of time, but contends that its day antenna 
structure is less than 200 feet AGL and, therefore, is not 
subject to the Commission's antenna registration and lighting 
requirements.  However, in its September 8, 2004, supplementary 
response, WLTH reports that it conducted a survey on September 4, 
2004, which established that the day antenna structure's height 
is 202.97 feet AGL.  In addition, WLTH contends that hunters 
caused the lighting outage by shooting out the antenna structure 
lights.  Finally, WLTH claims that it notified the FAA of the 
outage on March 5, 2003.
III.         DISCUSSION
     7.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Communications 
Act of 1934, as amended (``Act''),6 Section 1.80 of the Rules,7 
and The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines (``Policy Statement'').8 Section 503(b) of the Act 
requires that, in examining WLTH's response, the Commission take 
into account the nature, circumstances, extent and gravity of the 
violation and, with respect to the violator, the degree of 
culpability, any history of prior offenses, ability to pay, and 
other such matters as justice may require.9
     8.   Section 17.4(a) of the Rules provides in pertinent part 
that the owner of an antenna structure that had been assigned 
painting and lighting requirements prior to July 1, 1996, must 
register the antenna structure prior to July 1, 1998.  According 
to the Commission's records, WLTH's day antenna structure had 
been assigned painting and lighting requirements.  WLTH concedes 
that its day antenna structure was not registered.  We conclude 
that WLTH willfully10 and repeatedly11 violated Section 17.4(a) 
of the Rules.
     9.   Section 17.21(a) of the Rules12 requires that antenna 
structures exceeding 200 feet in height AGL be painted and 
lighted.  As indicated above, WLTH's day antenna structure 
exceeds 200 feet in height AGL and is required to have red 
obstruction lighting.   Section 17.51(a) of the Rules requires 
that the red obstruction lighting be exhibited between sunset and 
sunrise. On March 5 and 6, 2003, respectively an agent from the 
Chicago Office informed a WLTH of the outage.13  WLTH admitted in 
the March 12, 2003, telephone conversation and in its letter of 
March 26, 2003, that there was a lighting outage at its day 
antenna structure.  The fact that WLTH notified the FAA of the 
lighting outage on March 12, 2003,14 is also an admission that 
the outage existed.  In its response to the NAL, WLTH claims that 
hunters caused the outage by shooting out the antenna structure 
lights.  This explanation differs from WLTH's earlier explanation 
during the March 12, 2003, telephone conversation that the outage 
resulted from a sporadic power loss.  Furthermore, the tower 
described in WLTH's response to the NAL is in ``a wooded, rural 
area''15 and is apparently WLTH's night antenna structure, which 
has no lighting requirement.  We conclude that WLTH did not 
display the required red obstruction lighting at its day antenna 
structure, in willful and repeated violation of Section 17.51(a) 
of the Rules.
     10.  Section 17.48 of the Rules requires antenna structure 
owners to immediately notify the FAA of any lighting outage not 
corrected within 30 minutes.  The Chicago Office notified WLTH of 
the outage on March 5, 2004.  WLTH now claims that it notified 
the FAA of the outage the on the same day.  We must, however, 
reject that claim because it is inconsistent with the record.  
WLTH's station engineer stated, during his March 12, 2003, 
telephone conversation with the FCC agent that he had not 
notified the FAA of the outage.  Furthermore, as of March 19, 
2003, the FAA's records indicated that WLTH notified the FAA of 
the lighting outage on March 12, 2003.  We conclude that WLTH did 
not immediately notify the FAA of a lighting outage not corrected 
within 30 minutes, in willful and repeated violation of Section 
17.48 of the Commission's Rules.
     11.  We have examined WLTH's response to the NAL pursuant to 
the statutory factors above, and in conjunction with the Policy 
Statement as well.  As a result of our review, we conclude that 
WLTH willfully and repeatedly violated Sections 17.4(a), 17.48 
and 17.51(a) of the Rules and that neither reduction nor 
cancellation of the proposed monetary forfeiture is warranted.
     12.  As of the date of the adoption of this Order, WLTH has 
provided no information indicating that it has achieved 
compliance with Section 17.4(a) of the Rules.  Accordingly, we 
will require, pursuant to Section 308(b) of the Act,16 that WLTH 
Radio, Inc., report to the Enforcement Bureau no more than thirty 
(30) days following the release of this order how it plans to 
achieve compliance with Section 17.4(a).  WLTH's report must be 
submitted in the form of an affidavit or declaration signed by an 
officer or director.
IV.         ORDERING CLAUSES
     13.  Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of 
the Rules,17 WLTH Radio, Inc., IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of sixteen thousand dollars ($16,000) 
for willfully and repeatedly violating Sections 17.4(a), 17.48 
and 17.51(a) of the Rules.
     14.  IT IS FURTHER ORDERED that, pursuant to Section 308(b) 
of the Act,  WLTH must submit the report described in Paragraph 
12, above, no more than thirty (30) days following the release of 
this Order, to the Federal Communications Commission, Enforcement 
Bureau, Spectrum Enforcement Division, 445 12th Street, S.W., 
Room 7-A820, Washington, D.C. 20554, Attention: Thomas D. Fitz-
Gibbon, Esq.
     15.  Payment of the forfeiture shall be made in the manner 
provided for in Section 1.80 of the Rules within 30 days of the 
release of this Order.  If the forfeiture is not paid within the 
period specified, the case may be referred to the Department of 
Justice for collection pursuant to Section 504(a) of the Act.18  
Payment of the forfeiture must be made by check or similar 
instrument, payable to the order of the Federal Communications 
Commission.  The payment must include the NAL/Acct. No. and FRN 
No. referenced above.  Payment by check or money order may be 
mailed to Forfeiture Collection Section, Finance Branch, Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
Payment by wire transfer may be made to ABA Number 071000013, 
receiving bank Bank One, and account number 1165259. Requests for 
full payment under an installment plan should be sent to: Chief, 
Revenue and Receivables Operations Group, 445 12th Street, S.W., 
Washington, D.C. 20554.19 
     16.  IT IS FURTHER ORDERED that, a copy of this Order shall 
be sent by regular mail Certified Mail Return Receipt Requested 
to WLTH Radio, Inc., P. O. Box 2300, Gary, Indiana  46409, and to 
its counsel, Allan G. Moskowitz, Kaye Scholer LLP, 901 15th 
Street, N.W., Suite 1100, Washington, DC 20005.

                         FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                         George R. Dillon
                         Assistant Chief, Enforcement Bureau      
_________________________

1 47 C.F.R.  17.4(a), 17.48(a) and 17.51(a).  

2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432320001 (Enf. Bur., Chicago Office, rel. December 23, 2003).                 

3 47 C.F.R.  17.1 et seq.  According to the Commission's 
records, WLTH's day antenna structure is required to have red 
obstruction lighting at night.  (The information is from the 
Commission's ``towpub'' data base, which contains information 
concerning antenna structures that existed before the Commission 
required antenna structure registration.)

4 As of the date of the adoption of this Order, the ASR data base 
indicates that WLTH's day antenna structure remains unregistered.  
On February 26, 2003, the Chicago Office sent WLTH a letter 
informing it of the lighting and registration violations.

5 On March 12, 2003, the Chicago Office issued a Notice of 
Violation to WLTH for its failure to notify the FAA of the outage 
as required by Section 17.48(a) of the Rules. 

6 47 U.S.C.  503(b).

7 47 C.F.R.  1.80.

8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).  

9 47 U.S.C.  503(b)(2)(D).

10 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to violations for which forfeitures are assessed under 
Section 503(b) of the Act, provides that ``[t]he term `willful,' 
... means the conscious and deliberate commission or omission of 
such act, irrespective of any intent to violate any provision of 
this Act or any rule or regulation of the Commission authorized 
by this Act ....''  See Southern California Broadcasting Company, 
6 FCC Rcd 4387, 4388 (1991). 

11 As provided by 47 U.S.C.  312(f)(2), a violation that 
continues for more than one day is ``repeated.''   The Conference 
Report for Section 312(f)(2) indicates that Congress intended to 
apply this definition to Section 503 of the Act as well as 
Section 312.  See H.R. Rep. 97th Cong. 2d Sess. 51 (1982).  See 
Southern California Broadcasting Co., supra.  

12 47 C.F.R.  17.21(a).

13 The record does not reflect  that WLTH was aware of the  light 
outage pursuant to  the tower owner  responsibilities set out  in 
Section 17.47(a) of the  Rules, 47 C.F.R.   17.47(a), to  detect 
such light failures.

14 WLTH's assertion that it notified the FAA of the outage on 
March 5, 2003, is clearly erroneous in light of the station 
engineer's statement on March 12, 2003, that he had not notified 
the FAA, and the FAA records which indicated that WLTH notified 
the FAA on March 12, 2003.

15 WLTH's response dated January 23, 2004, to the NAL.

16 47 U.S.C.  308(b).

17 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

18 47 U.S.C.  504(a).

19 See 47 C.F.R.  1.1914.